Corea v Kekna Pty Ltd
[2014] WASC 507
•12 JUNE 2014
COREA -v- KEKNA PTY LTD [2014] WASC 507
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 507 | |
| Case No: | CIV:1787/2014 | 12 JUNE 2014 | |
| Coram: | CHANEY J | 12/06/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANTONIO COREA KEKNA PTY LTD |
Catchwords: | Caveat Extension Arguable claim for interest in land Turns on own facts |
Legislation: | Transfer of Land Act 1893 (WA) |
Case References: | Kekna Pty Ltd v Corea [2013] WASC 346 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
KEKNA PTY LTD
Defendant
Catchwords:
Caveat - Extension - Arguable claim for interest in land - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Ms A Liscia
Solicitors:
Plaintiff : In person
Defendant : Liscia Legal
Case(s) referred to in judgment(s):
Kekna Pty Ltd v Corea [2013] WASC 346
- CHANEY J:
(This judgment was delivered extemporaneously on 12 June 2014 and has been edited from the transcript.)
1 This application was commenced by originating summons, which was filed on 10 June, seeking an extension of the operation of a caveat, numbered M622592, until further order or until such time as the caveat is withdrawn. The caveat is due to expire at midnight tonight by reason of a notice given to the caveator, Mr Corea, under s 138B of the Transfer of Land Act 1893 (WA).
2 The application is brought under s 138C(1) of the Transfer of Land Act. Section 138(2) provides that the court can extend a caveat if the caveator's claim has, or may have, substance. The section also requires that the court must dismiss the application if it is not satisfied that the caveator's claim has, or may have, substance. A reference to the caveator's claim in that section is a claim by the caveator to an estate or interest in the land over which the caveat has been lodged.
3 The interest in this case which is claimed by Mr Corea is said to be an equitable estate or interest as to one undivided half-share, as beneficial owner pursuant to an express trust. The basis upon which that trust is said to arise is set out in the affidavit of Mr Corea, which was filed in support of the application for an extension of the caveat. He says that he travelled to Melbourne to meet with a lady called Erica Kyriakouleas to discuss a marital dispute that she was having with her husband. The affidavit does not deal with the husband's relationship to the property but it is clear from Ms Liscia's affidavit, which has been filed in opposition, that the husband was a controller of the company, Kekna Pty Ltd, which is the registered proprietor of the land. Mr Corea says that after that meeting the following occurred:
In consideration for my action and co-operation, Erica promised to divide any share she received from Kelmscott via her divorce proceedings with me on a fifty-fifty basis, alternatively, if Erica was not awarded any part of Kelmscott, she would assist me in my proceedings against Kyri to secure my interest in Kelmscott.
- The reference to 'Kyri' is to Mrs Kyriakouleas' husband. Mr Corea then says at [24] of that affidavit:
I have not received any communication from Erica regarding her promise to divide the proceeds of the Kelmscott sale, and I am now in the process of preparing a writ for recovery of money owing from Erica arising from such promise, which I intend to serve on Erica.
5 This is now a claim based on a different asserted interest in the land. There are arguments raised in the affidavit in opposition, or at least intimated in the affidavit in opposition, as to whether it is now open to Mr Corea to assert some interest in the land on a different basis from that asserted in the previous proceedings, when the person (Mrs Kyriakouleas) who is said to have conveyed the newly claimed interest was not called by Mr Corea to give evidence at the earlier trial, despite being available to do so. It is not necessary to resolve whether or not the estoppel which is suggested in the affidavit might arise in this case because, in my view, Mr Corea's evidence does not establish an arguable basis for claiming an interest in the land. The reason for that is that the person who is said to have made the promise which created the interest did not herself have any interest in the land which was capable of being conveyed. It is a trite proposition that a person cannot convey or transfer what they do not have.
6 In this case, the two connections which Mrs Kyriakouleas had with the land were that she was, apparently, a beneficiary under a discretionary trust, the trustee of which is the registered proprietor of the land, Kekna Pty Ltd. It is a trite proposition that a beneficiary under a discretionary trust does not have an interest in the assets of the trust, but merely has an interest in the due administration of the trust by the trustee. So that connection would not be sufficient to create an interest capable of divestment in the way that is asserted by Mr Corea. The second basis, and that which was relied upon in the oral submissions made by Mr Corea this afternoon, is that she had, and it would seem still has, a claim under the Family Law Act 1995 (Cth), following the breakdown of her marriage to Mr Kyriakouleas, to some share in the proceeds of that land, or, although there is no evidence of the nature of the way she puts the claim, it may be that she has a claim seeking to alter the interests in the land so as to transfer to her some or all of the ownership of the land.
7 Assuming most favourably to Mr Corea that her claim is for an order varying the interests in the land, that would not result in the conclusion that she has a present interest, or had an interest as at 2010, when the promise was said to have been made, capable of being transferred to Mr Corea by way of her promise. All that she has is a capacity to seek statutory remedy through the Family Law Act, which might result in her, at best, obtaining some future interest in the land. But more particularly, if one looks to the passages of the affidavit which I have specifically referred to, what is clear is that the promise, if it were to be made out, is a promise to share in the proceeds of a sale of the land. That is, in effect, a money debt which is asserted, and Mr Corea himself puts it in terms that he is preparing a writ for a recovery of money owing based on the promise. That is not an interest in the land, and is not therefore capable of being supported by a caveat over the defendant's land.
8 What is really sought, in effect, is some form of security, by way of caveat, for a potential money claim for a breach of a promise, or a breach of a contract to share any ultimate proceeds from sale of the land, if there are any, in exchange for assistance with divorce proceedings. On the basis of all of the evidence, there is no evidence to satisfy me that there may be an arguable claim for the interest in the land.
9 Mr Corea, faced with that position, as I foreshadowed it in order to give him an opportunity to comment, asked that the matter be deferred to enable him more time to consider what had been raised so that it can be argued at a later time. Implicit in that request is that the caveat should be extended, pending an opportunity for him to further consider the matter. In my view, that indulgence ought not be given.
10 No explanation has been provided as to why this application was made around about 48 hours before the 21-day period after which the caveat would lapse. In any event, having closely considered all of the papers which have been provided, including the affidavit filed in answer, which filled the many gaps in Mr Corea's affidavit, I am not persuaded that any basis of an arguable interest in the land is likely to be able to be identified. The prejudice to the defendant in further holding up settlement of this land, which was due to occur on 30 April, outweighs the arguments for allowing Mr Corea some further time to consider the matter.
11 The application for extension of the operation of the caveat will be dismissed.
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